Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada

APPENDIX C: REPORT ON QUEBEC WORKSHOPS (cont'd)

WORKSHOP C: DETERMINATION OF CHILD SUPPORT PAYMENTS

Workshop leader Jean-Marie Fortin
Secretary Allyson Guérin

PARTICIPANTS

OBSERVERS

Workshop C studied issues linked to the determination of child support payments within the framework of the Quebec model, because the federal model applies only in about one percent of the cases in Quebec. However, some issues, comments and recommendations are also appropriate with respect to the federal model.

Within the scope of renewing the mandate of the committee of the Quebec Ministry of Justice that is reviewing the Quebec model for the determination of child support payments, three topics dominate the research that needs to be continued and expanded: child support obligations of parents with children from subsequent unions, additional costs related to shared custody and child support for children at or over the age of majority.

Theme 1. Child Support Obligations for Children of Subsequent Unions

Question 7.1 Should other support obligations be removed in the model and, more particularly,the Child Support Determination Form from undue hardship and be provided for in some simple and equitable fashion on theForm?

Everyone agreed that the cost of access to justice is high-too high. It would be desirable to find a way to avoid these costs or reduce them. However, within the specific framework of this question, a simple and equitable way to remove the support obligations for children born of subsequent unions from undue hardship is far from clear. Several participants pointed out that they could not speak with authority on a solution, because the association they represented had not taken a position, they were unable to make a choice given the negative effects of either solution or because they wished to give it more thought in light of the discussions.

It seems clear, however, that everyone wants to maintain judicial discretion on this subject.

Everyone also acknowledged that the current system, although costly, is an adequate response to the situation, one that deserves further reflection.

To use a current expression, to "formularize" a solution is desirable. Which one, however, implies a social choice that the representatives present at the workshop were not yet ready to make.

Is the government's question premature? In this case, it would appear that the government is ahead of the social choices that Quebec and Canadian society must make concerning family law and how the family defines itself.

Question 7.2 Should we take into account only those obligations stemming from the previous union when considering other support obligations?

There are two conflicting concepts here. For the supporters of equal rights for children being the priority, all obligations should be considered, both pre-union and post-union.

For the supporters of "relative ability to pay" as a fundamental principle, only former obligations should be considered.

Question 7.3 Should we consider all support obligations or only child support obligations?

It is difficult to claim that a consensus was reached on this. It goes without saying that the principle "children come first" is part of the model and is expressly set out in the federal and provincial legislation.

To take into account support obligations other than those for children presupposes an amendment to the legislation that excludes children in the first place. To take into account these other obligations (spouses and ex-spouses) also implies taking into account their income and opens the door to discussions about this income. This has few or no supporters.

Question 7.4 According to the way these former obligations are taken into account, should the fact that they have already been taxed be considered or not?

Given the complexity of this subject, participants could not take a specific stand on this issue, other than to affirm that taxes should be far removed from any formula developed.

Despite the evident absence of a consensus on solutions to the problem of child support for children of other unions, all the participants agree about the principle of equality of children and equity in applying the rules used to determine child support. Several times, participants were able to see that the solutions proposed or the principles defended could have contradictory effects on other principles of law or on other objectives of the model. Thus, in applying possible solutions in keeping with the consensus on the equality of children with regard to their respective parents, one is faced with the value of the court orders that have been rendered and that are in effect.

An important distinction was made and must be pointed out. Obligation and support must be distinguished. Since the model indicates that support obligations can be invoked for children of other unions, more than just child support for these children is involved.

This important distinction led several participants to say that all current support obligations should be taken into account as soon as a new child arrives, for whom there is now an obligation. In practice, this means that as soon as a new child born in another union, new calculations must automatically be done to take this obligation into account and, thus, modify the child support for the previous union. This proposal also means that the impact of the arrival of the new child in the other union must be recognized at birth and not just when the union is dissolved.

Other participants said this proposal goes too far. In their opinion, the arrival of new children in another union happens without the children from the first union having anything to say about it. They do not, and cannot, participate in this decision. As a result, they should not have to suffer harm from this, even when the right of each parent to have children with another spouse is neither discussed nor disputed.

All participants agreed that the principle of "ability to pay" implies, without any equivocation, that when this ability exists, the child support should not be changed. Clearly then, it must be determined where the income line must be drawn to grant a reduction in child support or not, whatever principle or method is used.

Theme 2. The Cost of Shared Custody

Question 8.1 Are there additional costs linked to shared custody and when both parents have sole custody and there are more than two children?
Question 8.2 Should the model and, in particular, the formula used to determine child support provide additional amounts for these additional costs?
Question 8.3 Would a percentage of the basic parental contribution be adequate?

All the participants agreed on a certain number of points.

A review of costs by the participants suggests that all costs linked to basic parental support are higher in shared custody and when both parents have sole custody and there are more than two children.

Since it is desirable for the government to set up mechanisms to take this into account, all costs should be considered. This must not be limited to housing, clothing or transportation, since there are many situations in which other costs arise.

It is not evident that these additional costs for these types of custody are assumed by both parents. Some participants wondered if there should be some way to distribute these costs between both parents or to distinguish between those paid by one parent and those paid by the other.

The solution depends on the principle that is used. In these types of custody, and more particularly in shared custody, the cost of expenses is presumed to be paid by each parent in proportion to their custody time, once child support, which is determined as a function of income distribution, has been paid. Adding further costs to meet the children's needs could be managed in the same way.

It seems, however, that the current mechanism to share or manage expenses in shared custody is not understood. One participant suggested that, for shared custody cases, mediation should be mandatory. Several participants underlined the inherent difficulties in an automatic determination of custody time when calculating the amount of child support, notably because some parents try to arrive at the "magic" 40 percent for financial reasons, rather than for the best interests of the children.

There was consensus about the need for specific steps the government must develop to instruct and inform adequately not only the ordinary citizen, but also all interested parties, from the mediator to the judge, including the lawyers and other players.

Since expense management is badly understood in shared custody, and since there are many solutions (taken mostly case-by-case), some participants suggested that the government propose an expense-management model for these types of custody. Others, motivated by the same arguments, but fiercely opposed to any state intervention in the management of the domestic affairs of the ordinary citizen, suggested that parents be obliged to provide in their agreement an expense-management mechanism that they would use and that the court must accept in order to make the agreement final. When the parents cannot agree, the court should have the responsibility for establishing an expense-management mechanism; a list of subjects to be covered could be proposed by lawmakers.

In response to the suggestion that an appendix to the order should present the details of these additional costs, several participants said that it would not be good to go backwards and produce even more formulas related to the children's needs. The preference is for the application of one basic rule and a fixed calculation.

There seems to be consensus on the addition of a fixed percentage. Participants advocated that economic studies be done to determine the additional costs of these two types of custody and to provide a simple mechanism on the Child Support Determination Form.

This addition could be done based on the average cost per child who is the object of the custody arrangement, and could be added to the basic child support amount. Most participants considered that this percentage should not be lower than 25 percent of the cost per child.

To introduce a percentage, participants advised going ahead with the economic studies necessary to take into account the fact that these costs include all expenses covered by the basic parental support.

This percentage should be introduced in a simple, clear formula on the Child Support Determination Form. Applied by the average cost per child, it seemed to have the agreement of all participants.

Important Additional Specific Comments

The participants were unanimous in saying that there should be perfect harmony between civil and tax laws in the treatment of shared custody. Two specific elements were brought up on which the participants specifically asked the concerned authorities to act.

  1. The notion of the dependent child as used in the two income tax laws.

    In the case of shared custody, Quebec allows parents to share between both parents, as they wish, all credits available for dependent children. In addition, the fact that one of the parents has support obligations towards the other parent does not stop him or her from having the right to share these credits. When the parents cannot agree on sharing the credits between them, the Quebec Ministry of Revenue will prorate the available credits according to each parent's custody time.

    All participants agreed on this approach.

    But as far as the federal Income Tax Act is concerned, section 118 (4) b) L.I. gives the available credits to only one parent. When the parents cannot agree on who should get the credit, they both lose the credit. Furthermore, the provisions of section 118 (5) L.I. do not permit the parent with a support obligation to have a right to this credit.

    The participants expressly requested that the federal authorities align their income tax regulations with the Quebec regulations on this point.

    In fact, when the parents have shared custody, they both assume and pay the costs related to these children. So why does the federal government not allow both parents, in accordance with their agreement, to claim the available credits, and, when they do not agree, to go ahead on a pro rata basis in relation to custody time?

  2. The CCTB and Quebec Family Allowances

    The Quebec Pension Plan assigns appropriate family allowance benefits in accordance with the designation made by the Canada Customs and Revenue Agency with regard to the Canada Child Tax Benefit (CCTB).

    In cases of shared custody, both parents take care of the upbringing and education of the children. They are both addressed by the definition of "eligible person" under the terms of section 122.6 L.I., and the children in their shared custody answers to the definition of "eligible dependent person" under this section for both parents.

    But, as it was brought to the attention of participants and moderators, in the case of shared custody the authorities automatically consider that each of the parents can claim the CCTB (and, by extension, Quebec Family Allowances) only for the percentage of time his or her custody represents. This is independent of the fact that only one of the parents requests these benefits and allowances.

    There is no foundation in the law for this administrative policy, and everyone seems to be against it. When the parents agree that only one of them will ask for tax benefits and family allowances, the subsequent request is in complete agreement with the terms of the Act, and this parent can then have sole right to all the benefits and allowances that can be determined with respect to the criteria of income and age.

    In such a situation, the tax authorities have no argument for reducing this right in proportion to the custody time. When both parents agree on this distribution, the authorities should be bound by it. And, if both parties request these advantages and cannot agree on the distribution, then, and only then, should the authorities opt for a pro rata scheme, with respect to the custody time of each parent.

    The logic behind this position is the same as the logic applied to the questions of credits for dependents. In fact, in the case of shared custody, both parents have to assume expenses for the children under the plan. But if the government has money available for these children, why should it use an unacceptable strategy to reduce its social responsibility?

The participants expressly asked the federal authorities to align their policy on the sharing of child tax benefits with the choices available to parents and their dependent children under the Quebec tax scheme.

THEME 3. SUPPORT FOR CHILDREN OVER THE AGE OF MAJORITY

Question 9.1 Should the Quebec model accord to children at or over the age of majority the same presumptions as those accorded to children covered under themodel?
Question 9.2 Should the Quebec model accord to parents of children at or over the age of majority, who are still their dependents, the same right of representation that is accorded them under divorce law, when this law no longer applies and when the support for these children is subject to the Quebec Civil Code?

Two positions were laid out in the workshop discussion. Even though everyone agreed that there should be one state of the law, participants approached it from different perspectives.

Thus, everyone recommended that there be one way of proceeding with respect to children at or over the age of majority, with no distinction based on the matrimonial state of their parents.

One group of participants (a minority) considered that, once the children reaches the age of majority, they should be considered adults from every point of view. The impact of this affirmation is as follows.

Many objections were raised by other participants. The Ordre des psychologues is especially clear on this point: just because a child has reached the age of majority does not mean that the child is automatically independent and autonomous in all respects. The "children of a separation" must already cope with their parents' situation (even if they are not always direct witnesses to their conflict). They must not now be obliged to sue their parents.

This would also have the effect of forcing the parent with whom the children were living to negotiate rent with his or her children.

Despite the fact that the participants affirmed that majority-age children must not be treated like little kids, but rather be led forward to autonomy, as this is one of the criteria used to determine support payments between the spouses, few participants considered this solution realistic or desirable.

Finally, to apply this solution, the Divorce Act must be amended to exclude majority-age children from those considered dependent under the law.

Most participants opted for the opposite consideration. To make the solutions uniform, the Quebec Civil Code should be amended to integrate the notion of dependent child as provided under the Divorce Act, when speaking of majority-age children.

In these cases, there was unanimous agreement that the parent with whom the children were living should have the authority to present a request for support, which would be paid to him or her to meet the needs of the children. Also, in all these cases, direct recourse by the majority-age child should have precedence over any recourse by the custodial parent; however, the children should always claim support from both parents to avoid any discord, application difficulties and multiple recourse or appeals.

Everyone unanimously agreed that, in all cases, direct recourse by a majority-age child should have precedence over recourse by the parent who has custody of the children.

Important Additional Specific Comments

Once again, the question of aligning tax policies came up. In fact, if the Divorce Act recognizes that majority-age children can be dependents of their parents (or of one of the parents), why then does government economic assistance (CCTB and Quebec Family Allowances) end at the age of 18?

There is no argument to support two different positions by the same government on the same subject. On the one hand, the Divorce Act recognizes that these children can be financially dependent on their parents, and on the other hand, the same government says to parents that it can no longer help them once the children are 18.

If a lack of money is the basis for this reasoning, the government should review its budget and apply the same logic and standardize its social and family messages.

Thus, the participants expressly asked the federal and provincial authorities to align their family policies in such a way that the Canada Child Tax Benefit and the Quebec Family Allowances continue to be paid to parents of majority-age children, when these children are dependents of the parents, under the Divorce Act and the Civil Code (as amended).